Possession with Intent to Distribute vs. Simple Possession

Determining which charges you may face after a drug arrest could depend on the following:

• What drug was found
• How much of the drug you possessed
• How much cash you have with you, and whether you have a compelling explanation for why you had that amount
• If you have a history of related arrests and convictions
• Your apparent intent, either for personal use or with intent to distribute

Let a Philadelphia drug crime lawyer help you. When police arrest someone for drug possession, the person may face more than one charge. Each of these offenses is defined under 35 PA. Stat. § 780-113 is charged and graded differently, and for the person facing the charge, these cases differ primarily on their burden of proof, severity, and possible penalties.

Understanding How Pennsylvania Defines Simple Possession

Simple possession is the easiest for prosecutors to prove and comes with the most lenient penalties. Under the law that defines this crime, the person facing charges:

• Knowingly possessed the drug
• Did not have a license, prescription, or other approval to possess the drug
• Had the drugs for personal use

Possession means that a person has dominion or control over a thing.  At its most basic, a person had an illegal drug on their person or under their control. This is the charge you might face if the police searched your car and found a small amount of cocaine or a few prescription pills not prescribed to you. This law assumes that drugs are intended for the individual’s use unless there is other evidence to support their sale or distribution.

The potential penalties for a conviction in a simple possession case include:

• Up to a year in jail or prison
• A fine of up to $5,000
• Both incarceration and fines
• Significantly increased consequences for a second conviction, including three years behind bars and a $25,000 fine

It is also important to note that these penalties may not apply if the individual possesses just a small amount of marijuana. While this is still illegal in Pennsylvania, the penalties are reduced. Marijuana possession is still illegal in Philadelphia; law enforcement just declines to prosecute in almost every instance.

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Understanding “Possession with Intent to Distribute” in Pennsylvania

Possession with intent to distribute is a much more significant charge in Pennsylvania. A person found with drugs on them could face drug distribution charges based on the following indicators.

• A large amount of substances unlikely for personal use:
  • If the defendant possessed a quantity of drugs far exceeding what would typically be used personally, it could indicate intent to distribute.
• Packaging materials or drugs in smaller packages:
  • The presence of packaging materials, such as baggies or drugs already divided into smaller packages, suggests preparation for sale rather than personal use.
• Excessive drug paraphernalia more than one person would need:
  • Having a significant amount of drug paraphernalia, far beyond what a single person would reasonably need, can imply intent to distribute.
• Scales or other tools:
  • The presence of scales or other measuring tools is often associated with the distribution of drugs, as these items are used to weigh and divide substances for sale.
• A large amount of cash – proceeds from sales or to “make change”:
  • Possessing a large sum of cash, particularly in small denominations, can be indicative of drug sales, either as proceeds from sales or to provide change to buyers.
• Evidence of communication with customers, such as ledgers or call logs:
  • Documentation such as ledgers, call logs, or text messages that record transactions or contact with buyers is strong evidence of intent to distribute.

By considering these factors, a defense lawyer can challenge the prosecution’s claims and work to build a robust defense strategy aimed at securing the best possible outcome for the defendant.

Even if there are no observed drug sales, the government may argue that the defendant should be found guilty of Possession with the Intent to Deliver because the intent for the drugs to be sold is evident. 

Possession with intent to sell is always charged as a felony offense. However, it is an ungraded felony. If convicted, the severity of the penalties will depend greatly on several factors specific to the case. These factors include:

• The drugs involved
• How much of the drug the defendant possessed
• Any previous related convictions
• The circumstances of the arrest
• Other related factors, such as if a firearm or child was present

A conviction of this charge usually calls for imprisonment, although it is difficult to determine how long without assessing the facts of the case. The judge will likely consider:

• The defendant’s criminal history
• The quantity of drugs
• The current state of the world, ex. the “opioid epidemic”
• The mitigation presented on behalf of the defendant
• The rehabilitative needs of the defendant
• The aggravating factors presented by the government

In general, this could mean between one and five years behind bars. A second arrest could result in up to eight years in jail or prison. The fines for intent to distribute are also significantly larger than in most simple possession cases.

Drug Court’s Role in Your Defense Strategy

Those charged with possession – and in some cases, possession with intent to distribute – may have the option to enter the drug treatment court system if the court determines that drug addiction played a significant role in their crime. Drug courts are designed to address the underlying issues of addiction rather than simply punish the offender.

In drug court, the judge collaborates with a team that includes the defense attorney, prosecutor, probation officers, and law enforcement to support and enforce the defendant’s recovery. This multidisciplinary approach aims to provide comprehensive support, including access to treatment programs, regular drug testing, and ongoing supervision.

Participation in drug court can help break the cycle of addiction and incarceration that is prevalent across the country. It offers defendants a chance to avoid criminal prosecution if they comply with the program’s requirements. These requirements often include attending treatment sessions, passing regular drug tests, and appearing in court for progress reviews.

However, it’s important to note that if a defendant fails to abide by the program’s rules, all original charges can be reinstated, and they may face traditional prosecution. Drug court is a rigorous program that demands commitment, but it provides an opportunity for individuals to achieve long-term recovery and avoid the severe consequences of a criminal record.

Building a Defense for Your Drug Possession Case

As you can see, facing simple possession charges usually offers a much better outcome than possession with intent to distribute. If you cannot prove that you did not possess the illegal drugs as accused, you may want to focus on reducing the charges against you to simple possession.

Alternatively, Pennsylvania offers an Accelerated Rehabilitative Disposition (ARD) program that allows some people facing simple possession charges to avoid going to court for their crimes. Instead, they can enter into a pretrial rehabilitative program, meet its requirements, complete community service and probation, and apply to have their charges expunged. There may also be other pretrial diversionary programs available.

A good option is to work closely with a criminal defense attorney familiar with Pennsylvania’s drug laws. They will fight to help you get the most favorable outcome based on the facts of your case and the evidence prosecutors have against you.

Here are a few of the defense strategies your lawyer may use:

• Questioning the legality of search and seizure:
  • Challenge whether law enforcement officers followed proper legal procedures.
  • Argue that evidence obtained without a warrant or probable cause is inadmissible under the exclusionary rule.
• Asserting lack of possession:
  • Highlight if drugs were found in a shared space or near multiple people, making possession unclear.
  • Argue that the defendant was unaware of the presence of the drugs, negating the knowledge element required for possession.
• Chain of custody issues:
  • Scrutinize the handling and documentation of the drug evidence.
  • Identify any breaks or inconsistencies in the chain of custody that could suggest tampering or contamination.
• Entrapment:
  • Argue that law enforcement induced the defendant to commit the offense.
  • Show that the defendant would not have committed the crime without law enforcement’s intervention.

By combining these strategies, a defense lawyer can create reasonable doubt about the prosecution’s case, potentially leading to a dismissal or acquittal.

Get Your Free Consultation from Our Team Today

At the Law Offices of M.J. Snyder, LLC, our Pennsylvania criminal defense team handles drug possession cases every day. We can assess the drug charges against you and help you understand the possible outcomes of your case, including discussing diversionary programs and the benefits of ARD.

Contact us today for a free consultation. We are here to help during this stressful and challenging time.